CHARLESTON, W. Va. (April 6, 2017) – Yesterday, the West Virginia House gave final approval to a bill that would legalize medical marijuana and take a step toward nullifying federal marijuana prohibition in the state.

Sen. Richard Ojeda (D – Logan, 07) sponsored Senate Bill 386 (SB386), along with 11 bipartisan co-sponsors. The legislation would create a structure setting up a medical marijuana program in the Mountain State.

The bill underwent significant amendment during the legislative process. As passed, the bill would create a restricted program. Under the proposed law, patients with certain medical conditions would be able to access medical marijuana in the form of pills, oils, gels, creams, ointments, tinctures, liquid, and non-whole plant forms for administration through vaporization. It bans smoking marijuana and prohibits patients from growing their own. It also imposes hefty fees on growers, processors and dispensaries.

The Marijuana Policy Project has produced a detailed breakdown of the bill’s provisions.

The Senate initially passed SB386 by a 28-6 vote on March 29. After significantly amending the bill, the House approved the measure last Tuesday 76-24. The Senate concurred with the amendments Thursday by a 28-6 vote. The bill now goes to Gov. Jim Justice’s desk for his consideration. He has expressed support for legalizing medical marijuana and is expected to sign the legislation.

Ojeda told the West Virginia Gazette the bill was “way better than nothing.”

“It’s not devastating — not bad at all,” he said. “It’s still a good bill.”

Activists in the state reportedly already have plans to build on the foundation created by SB386. Ojeda said he hoped to amend the law next year to allow low income patients to grow their own marijuana.

All of this is prohibited under current federal law.


If SB386 is signed into law, it would partially remove one layer of law prohibiting the possession and use of marijuana in West Virginia, but federal prohibition would remain in place.

Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

While this West Virginia bill would not alter federal law, it would take a step toward nullifying in effect the federal ban. FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By easing the state laws, West Virginia would remove some of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


West Virginia could join a growing number of states simply ignoring federal prohibition, and nullifying it in practice. Colorado, Washington state, Oregon and Alaska have already legalized recreational cannabis with California, Nevada, Maine, and Massachusetts joining them after ballot initiatives passed in those state last November.

With more than two-dozen states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition any more.

“The lesson here is pretty straight forward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.


Gov. Justice will have until May 1 to sign or veto SB386.

Mike Maharrey

The 10th Amendment

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